Jean Crichton and Mr John Eleis her Husband, v. Maxwell of Kirkhouse
Date: 27 January 1666 Case No. No. 25.
Right of terce not affected by an infeftment in life-rent, not bearing in satisfaction of the terce.
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Jean Crichton being served to a terce of certain lands belonging to her first husband ——— Maxwell of Kirkhouse, pursues for mails and duties. It is alleged absolvitor, because the pursuer bath a competent jointure, more than the third of her husband’s estate, as then it was, and a provision of conquest; and albeit it be not expressly in satisfaction of the terce; yet it is but a minute, bearing to be extended, and there is a process of extension thereof depending, and therefore it ought to be extended with such clauses as are ordinary in such cases, and this is most ordinary, that competent provisions used to be in satisfaction of the terce, It was answered, That the extension could not be with alteration of any substantial point, such as this, but only as to procurators of resignation, precepts of sasine, &c. And to show that it was not Kirkhouse’s meaning, that the infeftment should be in satisfaction of the terce, the infeftment itself produced, being extended in ample form, does not bear to be in satisfaction.
The Lords repelled the defences, and found the terce competent in this case.
